To ensure clean and honest elections in Hong Kong, the Corrupt and Illegal Practices Ordinance (CIPO) prohibits various corrupt and illegal activities in relation to the elections. To meet the changing demands of the evolving electoral systems, in particular the system for the Legislative Council election, it is necessary to update the various provisions of CIPO. Hence, the Administration has introduced the Elections (Corrupt and Illegal Conduct) Bill (ECICB) which will replace CIPO upon enactment. The timing when ECICB is enacted will have a direct effect on the District Councils (DCs) election to be held in November 1999.
2. It is the Administration's aim to apply the provisions of ECICB to the 1999 DCs election. In order to do so, ECICB must be passed before 14 July 1999 which is the last sitting of Legislative Council (LegCo) before the summer recess so that the Electoral Affairs Commission (EAC) can reflect the relevant provisions in its regulation (see paragraph 5).
3. If ECICB cannot be passed before 14 July 1999, the existing CIPO will apply to the DCs election. In general, we do not see much difficulty because CIPO and ECICB prohibit the same unlawful acts at an election. However, the provisions in ECICB are set out more clearly and some of the definitions in ECICB such as election advertisement and election expenses are different from those in CIPO. A comparison table showing provisions in CIPO and ECICB is at Annex A.
(This is the same table annexed to LC Paper No. CB(2)1385/98-99(02) circulated in March 1999.)
4. According to section 13(1) of CIPO, the Chief Executive in Council may by order prescribe the election expenses limit which may be incurred by a candidate at an election. The same provision is included in clause 44(1) of ECICB. Given that LegCo will resume normal sittings only in October after the recess in July, all the subsidiary legislation for the DCs election must go through LegCo's negative vetting before 14 July 1999. Since the ECICB has yet to be passed, the Administration will table before LegCo an order on election expenses limit made under CIPO in May. If ECICB can be passed before 14 July 1999, the Administration will move a committee stage amendment to include a saving clause in ECICB to preserve the legal effect of the order made under CIPO.
5. EAC is empowered under section 7 of the Electoral Affairs Commission Ordinance to make regulation to provide for the procedure at an election. In drafting the regulation, EAC needs to take into account provisions in CIPO or its replacement legislation. Since ECICB has yet to be passed, EAC will draft the Electoral Procedure Regulation for the DCs election based on existing CIPO provisions and introduce it into Legislative Council for negative vetting in early June. If ECICB can be passed before 14 July 1999, the Administration will move consequential amendments in ECICB to amend the Regulation.
6. To provide legal basis for the practical arrangements for the DCs election, the following regulations must also go through LegCo's negative vetting before 14 July :
7.A tentative timetable for tabling all the subsidiary legislation for the 1999 DCs election is at
Provision of Elections
(Corrupt and Illegal Conduct) Bill ("ECICB")
(Clause Number and Heading)
| Provision of Corrupt and Illegal Practices Ordinance ("CIPO")
(Section Number)
| Explanatory Note
|
|---|
|
1. Short title and commencement of this Ordinance
| 1 | ECICB will come into operation on a date to be published in the Gazette by the Secretary for Constitutional Affairs.
|
| 2. Interpretation
| 2 | More terms are defined.
|
| 3. Objects of this Ordinance
| No equivalence |
Objects of the Ordinance are specified.
|
| 4. What elections does this Ordinance apply to?
| 3 | No substantive difference.
|
| 5. What conduct does this Ordinance apply to?
| No equivalence | Modelled on section 5 of CIPO to make it clear that the Ordinance generally applies to conduct engaged both in Hong Kong and elsewhere.
|
| 6. What penalties can be imposed for corrupt conduct at elections?
| 4 | The maximum fine for summary conviction of corrupt conduct is increased from $100,000 to $200,000 to make it proportional to the imprisonment term of 3 years.
|
| 7. Corrupt conduct to bribe candidates or prospective candidates
| 8A(1) | No substantive difference from the "bribe" component of the CIPO provision.
|
| 8. Corrupt conduct to use or threaten to use force or duress against candidates or prospective candidates | 8A(1) | No substantive difference from the "intimidation" component of the CIPO provision.
|
| 9. Corrupt conduct to engage in certain deceptive behaviour in relation to candidates and prospective candidates
| No equivalence | Modelled on the "fraudulent device" element in section 8(1) of CIPO.
|
| 10. Corrupt conduct to deface or destroy nomination papers
| 22 | Classified as corrupt conduct.
|
| 11. Corrupt conduct to bribe electors and others at elections
| 5 | It is specified that the purpose of the bribe is to influence a person in his voting for a particular candidate or candidates. This will exclude any act to promote an election in general. Also, voting arrangement will not be an offence unless it is done corruptly.
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| 12. Corrupt conduct to provide others with refreshments and entertainment at election
| 7 | "Food" is used to replace "meal" used in CIPO to avoid any potential ambiguity.
|
| 13. Corrupt conduct to use or threaten to use force or duress against electors
| 8 | No substantive difference from the "force, violence or restraint" components of the CIPO provision.
Clause 13(4) makes it clear that the offence provision does not cover a corporate elector who gives voting instructions to its authorised representative.
|
| 14. Corrupt conduct to engage in certain deceptive behaviour in relation to electors
| 8 | No substantive difference from the "fraudulent device" component of the CIPO provision.
|
| 15. Corrupt conduct to impersonate another at election
| 6 | No substantive difference.
|
| 16. Corrupt conduct with respect to voting at elections
| 14 | Classified as corrupt conduct.
|
| 17. Corrupt conduct to destroy or deface ballot papers
| 23 | Classified as corrupt conduct.
|
| 18. Corrupt conduct to make improper use of election donations
| 8B(1) | No substantive difference.
|
| 19. How candidate must dispose of certain electoral donations
| 8B(2) | No substantive difference.
|
| 20. Corrupt conduct to lodge false or misleading election return
| 29(5) | No substantive difference.
|
| 21. Corrupt conduct to withdraw election petition or election appeal for a bribe
| No equivalence | New provision to prohibit corrupt withdrawal of an election petition or election appeal.
|
| 22. What penalties can be imposed for illegal conduct at elections?
| 10 | The maximum fine for a conviction upon indictment of illegal conduct is increased from $100,000 to $200,000 to make it proportional to the imprisonment term of 3 years.
|
| 23. Illegal conduct for persons other than candidates and election expense agents to incur election expenses
| 12 | Clearer provisions to cater for the List Voting System.
It is clarified that a person becomes an election expenses agent only if he is authorised by the candidate and a copy of the authorisation has been served on the Returning Officer.
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| 24. Illegal conduct for candidate to incur election expenses exceeding prescribed amount
| 13 | Clearer provisions to cater for the List Voting System. All candidates on the same list will be liable if the aggregate amount of election expenses exceeds the maximum limit. A defence for a candidate is provided.
|
| 25. Illegal conduct to publish false statement that a person is or is not a candidate
| 15 | Existing provision expanded to include false statement that a person is a candidate.
|
| 26. Illegal conduct to publish false or misleading statements about a candidate
| 16 | Existing provision expanded to include "prejudicing the election of other candidates" in the purpose for publishing the false statement.
|
| 27. Illegal conduct to publish electoral advertisement that includes false claim of support
| 17 | Existing provision clarified to cover logo of a person or organisation, and pictorial representation of a person.
To specify that the use of a disclaimer does not preclude a contravention of this clause.
|
| 28. Court empowered to restrain person from repeating certain illegal conduct
| 16(3) | Existing provision expanded to cover all false statements and false claim of support. People who can apply for a court order are also specified.
|
| 29. Interpretation : Part 4
| 9(1A), 24(1) and 25 | To specify that a candidate is to be regarded as having personally engaged in corrupt or illegal conduct if the conduct was engaged in with his knowledge and consent. This is based on similar concept adopted in sections 9(1A) and 24(1) of CIPO. A defence for a candidate modelled on section 25 of CIPO is provided.
|
| 30. Court to declare candidate to be elected in certain circumstances despite corrupt or illegal conduct by agents
| 25 | No substantive difference.
|
| 31. Court may make orders relieving candidates from consequences of certain illegal conduct
| 26 | No substantive difference.
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| 32. Witness who is party to corrupt or illegal conduct not to be regarded as accomplice
| 24A | No substantive difference.
|
33. Interpretation : Part 5
(definition of terms)
| 19(5) | To cover a serving member irrespective of whether he is seeking re-election to the same body or another body.
|
| 34. Offence to publish election advertisements that do not meet certain requirements
| 19 | Election advertisements in registered local newspapers are exempted from the printing details requirement.
To reflect the existing requirement of prior deposit of an election advertisement before publication as specified in the Electoral Affairs Commission regulation.
The new definition of an election advertisement covers negative campaign, but excludes neutral advertisement that promotes an election in general.
|
| 35. Interpretation : Part 6
| No equivalence | To clarify the meaning of "the date on which the result of an election is published" for different elections.
|
| 36. Candidate to lodge election return with appropriate authority
| 29(1) | The amount of election expense which requires the submission of a receipt is increased from $50 to $100 to keep up with current price level.
|
| 37. Offence to fail to lodge election return
| 29(3) | The maximum fine for a conviction upon indictment is increased from $100,000 to $200,000 to make it proportional to the imprisonment term of 3 years.
|
| 38. Offence to participate in affairs of body if no election return is lodged
| 29(11) | No substantive difference.
|
| 39. Court may grant relief to candidate in certain circumstances
| 29(7), (7A), (8), (9) and (10) | No substantive difference.
|
| 40. Appropriate authority to keep election returns
| 29A | For elections of the Legislative Council and the proposed District Councils, the election returns will be kept by the Chief Electoral Officer instead of the respective Returning Officers under CIPO. This will facilitate public inspection of the election returns.
The $5 inspection charge under CIPO is removed in line with the principle of open elections.
The $2 per page photocopying charge is substituted by a fee to be specified by the Chief Electoral Officer with approval of the Financial Secretary based on actual cost.
|
| 41. Officers liable to be found guilty of offences committed by corporation
| No equivalence | To clarify liability of an officer for offences committed by a corporation.
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| 42. Attempts to be treated as complete offences
| No equivalence | By providing a specific provision to include an attempt to do an act, it is no longer necessary to include the "attempt" element in the relevant offence provisions.
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| 43. Rights of creditors not affected by contravention of this Ordinance
| 28 | No substantive difference.
|
| 44. Chief Executive in Council may make regulations
| 13(1) | To make it clear that different election expenses limits may be prescribed for different constituencies.
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| 45. Repeal of Corrupt and Illegal Practices Ordinance
| No equivalence | To repeal CIPO.
|
| 46. and Schedule
Consequential amendments to other Ordinances
| No equivalence | To replace the reference to CIPO with reference to ECICB in related ordinances.
To require the court hearing an election petition to provide the Director of Public Prosecutions with a report if it appears that any person may have engaged in corrupt or illegal conduct (items 6(i) and 7(i)).
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